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H-1B Professional Specialty Workers

H-1B Introduction

Established by the Immigration Act of 1990 (IMMACT), the H-1B nonimmigrant visa category allows U.S. employers to augment the existing labor force with highly skilled temporary workers. H-1B workers are admitted to the United States for an initial period of three years, which may be extended for an additional three years. The H-1B visa program is utilized by some U.S. businesses and other organizations to employ foreign workers in specialty occupations that require: theoretical knowledge, attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the US. Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors.

Benefits:

1.H-1B visa is granted in increments a total stay of six years.
2.Dual intent/opportunity to petition for future permanent residence. Immigration laws and USCIS regulations allow the H-1B holder to have"dual intent"with respect to his or her intent to immigrate to the United States. Therefore, an individual seeking the temporary right to work in the U.S. via an H-1B visa may also petition for permanent U.S. residence. One does not preclude the other.
3.No need to maintain a foreign residence. By law, H-1B visa allows dual intent. With the H-1B visa, there is no need for an alien worker to maintain a foreign residence, as opposed to many other temporary visas.
4.Ability to change employers during H-1B status. An H-1B worker can start to work for her new employer as soon as the new employer files a new H-1B petition on behalf of the alien.
5.Ability to change employers during the green card application process. An alien may change employers and it will not affect his adjustment of status provided that he/she has filed an I-485 for at least 180 days and continues to work in the same or related field for the new employer.
6.Spouses and unmarried children under twenty-one years of age may be entitled to enter and remain in the United States for the duration of the H-1B/H-4 status holder's authorized duration of stay.
7.An H-1B visa holder's spouse and unmarried children under twenty-one years of age are permitted to attend school based on their H-4 status either on a part-time or full-time basis.
8.An H-1B holder is allowed to go to school part time or full time without an F-1 as long as he/she currently holds a valid H-1B status.This means that while the H-1B employee is attending school, he/she must continue to work for his/her employer.
9.Can apply for part-time H-1B. As long as your work hours are at least 50% of the normal full time hours in your industry and you satisfy all other requirements for an H-1B, you are eligible to receive a part time H-1B status. If you have an H-1B status already, you can apply for a concurrent H-1B for another part time job. In this situation, there is no set number of hours that the beneficiary must work for each employer.

H-1B Requirements

Criteria for Determining Employee's Eligibility

1.Possess a U.S. Bachelor's degree;
2.Alternatives to Possessing U.S. Bachelor's Degree
1)Possess a foreign degree that is determined to be the equivalent of a U.S. Bachelor's degree;
2)Possess an unrestricted state license, registration or certification that authorizes the individual to practice in that industry in the state of proposed employment;
3) Possess education, specialized training, and/or experience that are equivalent to a U.S. Bachelor's degree.
3.Qualifying the Position as a "Specialty Occupation
The technical requirements with respect to a specialty occupation are:
1)full state licensure to practice in the occupation, if such licensure is required to practice in the occupation;
2)completion of the degree in the specific specialty required as a minimum for entry into the occupation; or
3)Experience in the specialty equivalent to the completion of such degree, and recognition of expertise in the specialty through progressively responsible positions relating to the specialty.


Criteria for Determining Employer's Eligibility

1)Must obtain approved Labor Condition Application from the Department of Labor
2)The position offered requires knowledge, both theoretical and applied, which is almost exclusively obtained through studies at an institution of higher learning.
3)The position requires a specific course of study which relates directly to the position.
4)Attainment of a bachelor's or higher degree in the specific activity (or its equivalent) is a minimum requirement for the position.

H-1B Cap

The H-1B"Cap"refers to the annual numerical limitation set by Congress on the number of workers authorized to be admitted on H-1B type of visa or authorized to change status if already in the United States. The allotment of H-1B visas provided annually by Congress is 65,000. Out of that number, 6,800 are reserved for the H-1B1 program for nationals of Chile and Singapore. Numbers not used of that 6,800 (which will likely be several thousand) will be made available in the 45 day period beginning October 1st.

H-1B quota-exceptions

1)extensions for current H-1B workers
2)changes/amendments current H-1B workers
3)changes of employer by current H-1B workers
4)new concurrent employment for current H-1B
5)previous H-1B workers who have not been outside the U.S. for one year or more since that petition was granted
6)H-1B petitions filed by institutions of higher learning, affiliated research
7)Organizations, nonprofit research organizations, and government research organizations.

Multiple H-1B visas

It is allowed that an US employer petitions for part-time H-1B. As long as work hours are at least 50% of the normal full time hours in industry and H-1B holders satisfy all other requirements for an H-1B, they are eligible to receive a part time H-1B status.
If one has an H-1B status already, he or she can apply for a concurrent H-1B for another part time job. In this situation, there is no set number of hours that the beneficiary must work for each employer. He or she should ask the prospective employer to apply for a part time H-1B visa on his or her behalf. They may keep two or more concurrent H-1Bs.

H-1B Extension beyond 6 year limit

There are only two situations an H-1B status holder can extend his/her visa status beyond the 6-year limit.
1)If the H1-B holder has filed either a Labor Certification application or an I-140 petition 365 days before the expiration of the six-year limitation, and the LC or I-140 process is still pending, the H-1B visa holder may extend his or her H-1B on annual basis beyond the six-year limitation.There is no upper limit on total years in H-1B extension under such circumstance as long as the immigration process is still on going.
2)If an H-1B visa holder has an approved I-140 petition and the immigrant visa number is not available for him/her due to the visa retrogression (not eligible to file I-485 due to visa number issue), the H-1B visa holder may extend his/her H-1B on a three-year interval beyond 6-year limitation.There is no 365-day requirement for this circumstance.

 
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